Is Virginia Entitled to Compensation 

for the Cession of the Northwest 

Territory to the National 

Government? 



PAPER READ 



BY 

MR. E. HILTON JACKSON 

OF WASHINGTON, D. C. 
BEFORE THE 

Virginia State Bar Association 

AT THE HOTEL CHAMBERLIN, 

OLD POINT, VA. 

AUGUST 6th, 7th, 8th, 1912 



KICHMONI>: 
RICHMOND PRESS, INC. 



h56 



c\ 



(0;C!.A334554 



A FORE WORD. 

In a paper of this character it is not easy to trace the sources 
of information which enter into the conclusions reached, still 
some effort in this direction should be made, because of the 
labors of those who have preceded the writer in this interesting 
line of investigation. 

The mere suggestion that the State of Virginia, representing 
herself and the other thirteen colonies, has a just claim against 
the nation approximating the enormous sum of two hundred 
million dollars and that any Court clothed with the necessary 
jurisdiction to hear and determine the law and facts involved 
would in all probability make such an award is a question that has 
hitherto escaped both the attention of the historian and the 
acumen of the legal profession. It is not believed, however, 
that the inattention to which this matter has been subjected for 
a century and a quarter relieves the Nation of the duty of dis- 
charging a just liability, if such liability is found to exist, or the 
States vitally concerned from the responsibility of pressing this 
claim upon its attention. 

The writer's interest in this general subject was first aroused 
in 1906 when he was engaged In the preparation of a paper, 
afterwards read before this Association, entitled "The Dismem- 
berment of Virginia," at which time the imperial colonial posses- 
sions of Virginia were found to be surpassed only by her striking 
generosity in ceding these possessions to the Nation at a time 
when their retention by her would have postponed indefinitely, 
if not forever, the establishment in the western hemisphere of a 
republic upon the federal principle. Nor is this generosity in 
any wise diminished, if it be found that a fair interpretation of 
the language of the deed of cession discloses that the nation 
thereby became a trustee of a large part of this territory for the 
benefit of Virginia and the remaining thirteen colonies, with 
respect to which trust there has been no accounting whatever 
by the nation in favor of the states interested. 

More recently the writer's attention was directed to this 
subject by the bill introduced in the Senate on April 10, 1912, by 



•2 

Senator Chilton, of West Virginia, "TO PROVIDE FOR THE 
BRINGING OF SUITS AGAINST THE UNITED STATES 
BY VIRGINIA, WEST VIRGINIA, KENTUCKY" and the 
remaining thirteen colonies. 

The bill had its indirect origin in a detailed statement of the 
claim compiled by Dr. R. B. Fulton and subsequently used as 
the basis of a message of Governor Claude A. Swanson, dated 
January 24, 1910, to the GENERAL ASSEMBLY OF VIR- 
GINIA, suggesting that it take appropriate action to have the 
claim adjudicated. 

The public documents bearing upon the question of Virginia's 
title to the land ceded and the disposition made thereof by Con- 
gress may be found in the History of the Public Domain by Don- 
aldson, and the Land Laws of the United States, which have been 
of untold value in the preparation of this paper. 

Some of the sources of information to which the writer is 
indebted are: "The Northwest Under Three Flags," Charles 
Moore, "Ordinance of 1787," Edward Coles, "Critical Period of 
American History," John Fiske, "Maryland's Influence Upon 
Land Cessions to the United States," H. B. Adams, "Ordinance 
of 1787," F. D. Stone, "The Old Northwest," Hindsale, "Twenty 
Years in Congress," Blaine, "Handley's Lessee v. Anthony, 5 
Wheaton, Johnson v. Mcintosh, 8 Wheaton, Commonwealth 
V. Garner, 3 Grattan, Hening's Statutes at large, Virginia. 

The writer has been unable to persuade himself that some 
way cannot be found whereby West Virginia, Kentucky and the 
thirteen States may co-operate, through their representatives 
in Congress, to the end that some just and equitable settlement 
may be made. 

While the method of settlement herein suggested contemplates 
that the claim may be more satisfactorily disposed of by some 
already existing tribunal previously clothed with jurisdiction 
to hear and determine all the issues of fact and law involved, yet, 
to the writer's mind the method adopted is of no great import- 
ance. 

E. Hilton Jackson. 



Is Virginia Entitled to Compensation 

for the Cession of the Northwest 

Territory to the National 

Government? 



Paper Read by MR. E. HILTON JACKSON, of Washington, 

D. C. 



I. 



The Title of Virginia to the Northwest Territory Em- 
braced IN the Deed of Cession of March 1, 1784. 



It would be signal error to suppose that Virginia contrib- 
uted only men and measures to the making of this nation. From 
her original territory, known as Raleigh's Virginia, extending 
from the Floridas to Canada, New England, New Netherlands, 
Maryland and the Carolinas, had been taken by successive char- 
ters, still leaving, however, her domain sufficiently ample to 
ensure to her the proud title of "The Mother of the States." 
After being thus dismembered, she, by voluntary deed of cession 
of March 1, 1784, duly signed, sealed and delivered by her ac- 
credited representatives in the Continental Congress, gave to 
the nation an empire larger than any in Europe save Russia, 
comprising an area washed on its triangular sides by three thous- 
and miles of navigable waters, on the north by the Great Lakes, 
embracing one-half of the fresh water of the globe, and on the 
west by a river whose volume equals that of all the rivers of Eu- 
rope save only the Volga. Some slight conception of the ex- 



4 

tent and importance of this cession may be had when we reflect 
that the territory thus ceded contains by United States survey 
265,878 square miles, or 170,208,613 acres, and that out of it 
the great States of Ohio, Indiana, Illinois, Michigan, Wisconsin, 
and all of Minnesota lying east of the Mississippi have been 
formed — a territory that played a more important part in the 
subsequent history of this nation than all other acquisitions, and, 
as incidental to the mighty role, has furnished three of the Chief 
Justices and eight of the Chief Magistrates of the Republic. 
One of the latter, to-wit, James A. Garfield, has made a valuable 
contribution to this subject in the form of an address, entitled 
"The Northwest Territory and the Western Reserve." 

Before the other issues raised by this subject can be adequately 
considered, Virginia's title to this vast region must be subjected 
to impartial scrutiny. Did she have anything to give? Was 
her title, however acquired, such as to enable the nation to whom 
it was ceded to hold it against all comers? Or was this title a 
mere inchoate and ill-defined claim, giving to the sovereign gran- 
tee only a mere right of action that thereafter must be reduced 
to possession and ov/nership? No full answer can be made to 
these inquiries without examination into the several methods of 
acquiring title to territory on the North American Continent. 

The European nations interested in the acquisition and ex- 
ploitation of land in the Western Hemisphere gave full assent 
to the doctrine that discovery gave title to the government by 
whose subjects it was made against all other nations, and that 
this title might afterwards be perfected by possession. Not the 
slightest difficulty was found in disposing of the title of the origi- 
nal inhabitants, who, after such discovery and occupation, were 
held by principles of international law, recognized at the first op- 
portunity by the Supreme Court of the United States, to have 
only a right to its use and occupancy, the consideration appar- 
ently going to these benighted peoples in exchange for the un- 
limited independence theretofore enjoyed, being the blessings 
of civilization and Christianity — a boon which they neither 
sought nor desired. It followed as a natural sequence that an\- 
of the European nations, having thus acquired lands, might con- 
vey by grant or otherAvise a good title thereto, subject only to 



the Indian right of occupancy, the discovery also giving to the 
discovering nation the exclusive right to extinguish the Indian 
right of occupancy either by purchase or conquest. How far 
this title has thus been extinguished let history answer. England 
granted a commission, during the reign of Henry VII to Sebas- 
tian Cabot in 1496, to discover countries unknown to Christian 
people and to take possession of them in the name of her king. 
Two years later Cabot discovered the Continent of North Amer- 
ica, sailing as far south as Virginia, and to this discovery the 
English trace their title. This doctrine later found recognition 
in the charter granted to Sir Humphrey Gilbert in 1578, which 
authorized him to discover and to take possession of such heathen 
lands as were not actually possessed by any Christian prince or 
people. This charter was afterwards renewed, in substance, 
by Queen Elizabeth to Sir Walter Raleigh in 1585. France, it 
may be asserted from a fair reading of history, first occupied the 
Northwest and established her trade from the St. Lawrence to 
the Mississippi, and it was not until a century later that the 
English Colonies, chiefly Virginia, having crossed the AUe- 
ghanies, came into collision with France. To some extent, how- 
ever, the discovery and occupation by France and Great Britain 
of the territory east and west of the Mississippi was contempo- 
raneous and involved these nations in contests which were not 
settled until the treaty of Paris in 1763. By this treaty the Mis- 
sissippi was irrevocably fixed as the boundary line between the 
territories of France and Great Britain. With the checkered 
career of the territory thus ceded to France and afterwards 
known as the "Louisiana Purchase", the title to which, owing 
to the necessities of the First Napoleon, became vested in the 
United States April 30, 1803, this paper has nothing to do. We 
are alone interested at this time in fixing the title of the North- 
west territory in Great Britain by the treaty of Paris, thus vi- 
talizing and giving definition to the language of the charter of 
Virginia, which was broad enough to cover any territory in the 
Northwest, the title to which was recognized to be in Great 
Britain. At this time Virginia, being a royal colony, became the 
repository of whatever title Great Britain possessed. 

The settlement in Jamestown in 1607 was made pursuant to 



the terms of a charter granted April 10th, 1606, by James I, but 
soon thereafter, May 23d, 1609, the first charter proving unsatis- 
factory, the same sovereign issued a second charter, in which the 
metes and bounds of the Colonj^ were specifically set forth as 
follows: "Situate, lying and being in that part of America called 
Virginia, from the point of land called Cape or Point Comfort, 
all along the sea coast to the northward 200 miles, and from the 
said point ot Cape Comfort all along the sea coast to the south- 
ward 200 miles and all that space and circuit of land lying from 
the sea coast of the precinct aforesaid up into the land through- 
out from sea to sea.'' 

A third charter, dated March 12th, 1612, annexed to Virginia 
all the islands within three hundred leagues of the coast. These 
three charters were vacated, but both James I and Charles I ex- 
pressly declared that the annulling of the charters simply abol- 
ished the sovereignty that had been ceded to the Virginia Com- 
pany and did not infringe or diminish the territorial rights of the 
colony. 

Subsequently other charters were granted by Great Britain 
to the colonies of Maryland, Pennsylvania, and North and South 
Carolina, with the result that the different colonies claimed own- 
ership of the same territory, and often claimed under conflict- 
ing authorities, growing out of the ill-defined grants made by the 
different sovereigns of Great Britain covering land in America, 
in royal ignorance of the extent and configuration of these lands. 
After her organization into a sovereign State, Virginia did much 
to end the controversy between herself and the above mentioned 
States, by incorporating a provision in her first Constitution 
adopted June 29, 1776, as follows: 

"The territories contained within the charters erecting 
the colonies of Maryland, Pennsylvania, North and South 
Carolina, are hereby ceded, released and forever confirmed 
to the- people of these colonies, respectively, wath all the 
right of property, jurisdiction and government, and all other 
rights whatsoever which might at any time heretofore been 
claimed by Virginia, excepting the free navigation and use 
of the rivers Potomack and Pohomoke with the property 



of the Virginia shores or strands bordering on either of said 
rivers, and all improvements which have been or shall be 
made thereon. 

"The western and northern extent of Virginia shall in all 
other respects stand as fixed by the charter of King James 
I, in the year 1609, and by the public treaty of peace be- 
tween the courts of Great Britain and France in the year 
1763, unless by act of legislature one or more territories 
shall hereafter be laid off and governments established 
westward of the Alleghany Mountains. And no purchase 
of land shall be made of the Indian natives but on behalf of 
the public by authority of the General Assembly." 

It will thus be seen that Virginia forever released all her claim 
heretofore asserted to jurisdiction and property rights embraced 
in the charters of these particular colonies and at the same time 
reaffirmed her own charter rights to the Northwest territory 
bounded by the Ohio and Mississippi, with an indefinite exten- 
sion northwest of the Ohio River. This left open, however, the 
controversy between Virginia and such States as New York, 
Massachusetts and Connecticut, which had large claims to West- 
ern lands, some of which overlapped Virginia territory. This 
particular controversy could have had but one result, in view 
of the indisputable record that this territory was never within 
the chartered limits of any other colony or State or declared to 
be so by any State in her declaration of independence, and, it 
being conceded that the Confederation as such had acquired no 
land by the War of the Revolution, it of necessity follows if the 
territory did not belong to Virginia, it did not belong to the 
United States. 

Not content to rely upon charter rights the Legislature of Vir- 
ginia had exercised many acts of dominion over this region. She 
created the counties of Orange in 1734, of Augusta in 1738, of 
Botetourt in 1769, "bounded west by the utmost limits of Vir- 
ginia." In this act it was also recited that the people in this 
county on the waters of the Mississippi were very remote from 
the Court House. Another county, that of Fincastle, extended 
to the Ohio, and embraced Kentucky. At the time of the De- 



claration of Independence these counties, bordering on the Ohio 
and the Mississippi, were represented in the convention that 
framed the first Constitution of the State. From 1752 to 1755 
the legislature passed acts encouraging persons to settle in this 
region, and Marshall's Life of Washington is authority for the 
statement that the grant made to the Ohio Company was made 
as a part of Virginia; while numerous other grants were made in 
the Colonial period. 

Her title to the Northwest territory was further strengthened 
by conquest, and the Commonwealth, acting through its governor 
and council, commissioned one of its own citizens, George Rogers 
Clarke, who, in command of her own troops during the years 
1778 and 1779, captured all the British posts within the con- 
fines of this territory, with the exception of those immediately 
bordering on the Great Lakes, and held the same in her own 
name. By this expedition, "commanded by a Virginian, at 
the head of a Virginia army, financed by Virginia," this terri- 
tory was won, thereby terminating the British occupation and 
materially contributing to the final victory won by the Colonial 
army under the command of Washington at Yorktown. During 
the governorship of Patrick Henry, the Legislature in October, 
1778, organized the entire territory into Illinois county and soon 
thereafter Governor Henry made provision for its government 
by appointing and giving instructions to a lieutenant commander, 
and the State* continued in actual control and possession until 
the cession to the Federal Government and the latter's accept- 
ance thereof. 

If further evidence of the title of Virginia were required it 
may be found in the recognition of its validity by the Supreme 
Court of the United States in two notable decisions. In the 
first, decided in 1818, Handley's Le55ge v. Anthony, 5 Wheat. 667, 
there was a dispute involving the question of the jurisdiction of 
the State of Kentucky over a portion of land in the shape of a 
peninsula on the northwest bank of the Ohio River. The court, 
speaking through Chief Justice Marshall, based its decision 
against the validity of the claim of Kentucky on the grant of 
Virginia to Congress of the territDty in her deed of cession, as 
follows: "Situate, lying and being northwest of the Ohio River." 



The disputed tract, therefore, being in the State of Indiana, one 
of the States carved out of the territory thus ceded, the court 
held to be clearly comprehended by Virginia's cession, thus by 
effective reference recognizing Virginia's title to all the territory 
embraced in said deed. In the second case, Johnson v. Mcintosh, 
8 Wheat., decided in 1823, in which Daniel Webster appeared as 
counsel for the successful litigant, the court, again speaking 
through Chief Justice Marshall, denied the validity of a title to 
lands within the northwest territory derived solely from the grant 
of an Indian tribe, on the ground that by the treaty of 1783, con- 
cluding the War of the Revolution, Great Britain relinquished 
her claim to the proprietary and territorial rights of the United 
States, and by this same treaty the right to the soil previously 
in Great Britain passed to the several States. That Virginia's 
title to the Northwest territory was thereafter subject only to 
the right of occupancy of the Indians, and that the right to ex- 
tinguish said occupancy was vested alone in that State, and 
therefore any grant of such soil by an Indian tribe without the 
concurrence of Virginia was null and void. 

In the case of the Commonwealth v. Garner, et al., a case de- 
cided by the General Court of Virginia, reported in 3 Gratt. 655, 
the title of Virginia to this territory is abundantly established 
and the decision of the Supreme Court cited above adopted. In 
this case the contention was raised by Hon. Samuel F. Vinton, 
on behalf of Ohio, that the title to this territory was never in 
Virginia. But the court, in disposing of this contention, not 
only completely established Virginia's title, but also disposes of 
this extraordinary contention with the conclusive suggestion 
that the title of Ohio, whatever it was, was derived from Vir- 
ginia, and therefore the former w^as estopped to deny the title 
of the latter. It is believed that this opinion, occupying one hun- 
dred and thirty pages of the printed report, constitutes the most 
valuable contribution extant upon the historical and legal as- 
pects of Virginia's title. 

The Continental Congress in framing the Articles of Confed- 
eration to be submitted to the several States for their accept- 
ance confirmed Virginia's title by inserting a clause to the ef- 



10 

feet that "no State shall be deprived of territory for the benefit 
of the United States." 

At the time the treaty of peace of 1783 was negotiated there 
was much anxiety as to whether the western lands should be 
comprehended in this treaty. The American Commissioners 
put forward two views, namely, that this land was included and 
embraced within the limits of Virginia's charter of 1609, and 
that it was also in the actual occupancy and possession of Vir- 
ginia, having been conquered by her troops under the expedi- 
tion of George Rogers Clarke. The result of this double claim 
made by the American Commissioners was to embrace this ter- 
ritory in the treaty of cession, and, without attempting to decide 
which view prevailed, it was exceedingly fortunate that this 
region was in the possession of Virginia troops at the close of the 
Revolutionary War. 

II. 

The Circumstances Culminating in the Cession of the 
Northwest Territory by Virginia. 

A brief survey of the relative area of the original thirteen 
States is necessary in order to a correct understanding of the 
influences operating to bring the Northwest territory under na- 
tional control. For convenience these States may be divided 
into claimant and non-claimant States, the former only claiming 
western lands. The combined area of the six non-claimant 
States, to-wit. New Hampshire, New Jersey, Rhode Island, 
Delaware, Pennsylvania and Maryland, was 49,976,000 acres, 
while the combined area of the claimant States, to-wit. New 
York, Massachusetts, Connecticut, North Carolina, South Car- 
olina, Georgia and Virginia, was 152,025,280 acres. To this 
must be added the 53,052,880 acres within the boundaries of 
Kentucky, Vermont and Maine, which States were erected out 
of territory claimed respectively by Virginia, New York, Ma.^sa- 
chusetts and New Hampshire by virtue of grants from the Brit- 
ish crown prior to the Revolution. 

To the area of the claimant States must be added their west- 
ern lands, aggregating 259,171,789 acres. 



11 

The grand total, therefore, of the acreage of the claimant 
States was 464,247,949 acres, as against only 49,976,000 acres 
within the area of the non-claimant States. Virginia's area 
alone amounted to 218,866,533 acres, which was thirty-one 
times as large as that of Maryland, and two hundred and ten 
times as large as that of Delaware, and two hundred and sixty 
times as large as that of Rhode Island. 

The comparative area of the lands of the claimant and non- 
claimant States was not the only difficulty, inasmuch as be- 
tween the claimant States rival claims were put forward to the 
same territory, growing out of conflicting grants made by differ- 
ent sovereigns of Great Britain for lands in America already ad- 
verted to. These royal grants covered the face of portions of 
territories of some of the colonies with titles and claims five deep. 
These questions not only prevented full concert of action among 
the several States prior to the adoption of the Constitution, but 
gave rise to controversies that seemed impossible of adjustment, 
leading at least one historian to remark that the only boundary 
line of the original thirteen colonies not the subject of contro- 
versy was that on the east, to-wit, the Atlantic Ocean. Scent- 
ing danger, the claimant States caused to be inserted in the Ar- 
ticles of Confederation on October 27, 1777, a declaration to 
the effect that the Continental Congress should be the last re- 
sort on appeal, in all disputes and differences between two or 
more States concerning boundaries, jurisdiction, or any other 
cause whatever, with an elaborate machinery for the exercise 
of such jurisdiction. It does not appear that the determination 
of any such controversy was ever submitted to Congress, and, 
in view of the cumbersome machinery provided and the jeal- 
ousy of the States, it is not at all probable, if such a question had 
been submitted, that any conclusion satisfactory to the clamiant 
States could have been reached. 

Another question of vast magnitude grew out of the helpless- 
ness of the Continental Congress in the matter of taxation and 
revenue, and tended to draw public attention to the lands of the 
Northwest as a source of revenue. The Congress having no 
power to levy a direct tax and no means of enforcing against a 
State its proportionate share of the expenditures incurred in the 



12 

common defense or general welfare, these lands as early as 1776 
were looked to "as a resource amply adequate, under proper reg- 
ulations, for defraying the whole expenses of the war." The fi- 
nancial embarrassment of the country had not grown less upon 
the completion of the Articles of Confederation and, more and 
more was the public mind being directed to these lands as a means 
of relief. On July 31, 1782, a committee of one from each State 
reported to Congress "that the western lands, if ceded to the 
United States, might contribute toward a fund for paying the 
debt of these States," but a substitute for this part of the re- 
port was embodied in a resolution declaring that the cession of 
these lands "would be an important fund for the discharge of 
the national debt." While neither of the above recommenda- 
tions was actually adopted, yet their serious consideration by 
Congress shows that the national idea was gaining ground. 

Having thus demonstrated the hopeless character of the land 
controversy into which the claimant States were about to be 
plunged, if left alone to adjust their own differences, the over- 
shadowing influence of the claimant States in the Confedera- 
tion, which time would not diminish, as well as the important 
bearing of these lands upon the public revenue, when once under 
national control, it now becomes pertinent to trace the more im- 
mediate steps looking to the result. Hinsdale in "The Old 
Northwest" points out that at various times four different ideas 
as to the western lands were suggested. The original idea of the 
claimant States was to retain them for their own exclusive use; 
second, it was proposed to distribute the lands or their proceeds 
among all the States in whole or in part, leaving the question of 
jurisdiction with the claimant States. The third proposition 
might be termed the Maryland idea, to-wit, that Congress should 
assert the sovereign power of the United States over the western 
lands without waiting for State cessions. The last plan, that 
of voluntary cession by the States was the one ultimately 
adopted. The first two plans soon passed out of consideration 
as not meeting the exigencies of the situation, and the last two, 
that of an assertion of national sovereignty and that of volun- 
tary State session, were now bi-ought promptly forward. Paren- 
thetically, it should be observed that there could be no national- 



13 

ization of these lands as long as the Confederation lasted, inas- 
much as the Articles gave Congress no resources whatever, ex- 
cept as same might come to it by way and in the name of the 
States. 

To Maryland must be given credit of first calling official at- 
tention of the nation to the gravity of the situation. On Oc- 
tober 15, 1777, a month prior to the completion of the Articles 
of Confederation, the following proposition, receiving only the 
single vote of Maryland, was offered: "That the United States 
in Congress assembled shall have the sole and exclusive right and 
power to ascertain and fix the western boundary of such States 
as claim to the Mississippi or South Sea and lay out the land 
beyond the boundary so ascertained into separate and independ- 
ent States, from time to time, as the numbers and circumstances 
of the people thereof may require." Congress in June, 1778, 
following the submission of the Articles of Confederation on No- 
vember 17, 1777, to the States for their ratification, was engaged 
in the discussion of the objections of certain of the States to these 
Articles. At this critical juncture the State of Maryland in two 
separate resolutions passed respectively on June 22d and De- 
cember 15th, 1778, proposed that the boundary of the claimant 
States should be curtailed and defined, and that the western 
territory should be held for the benefit of all the States. From 
that time until the 2d day of February, I7rtl, Maryland refused 
to instruct her delegates to agree to the Articles of Confederation. 
On May 21, 1779, through her representatives in the Continen- 
tal Congress, Maryland laid before that body certain instruc- 
tions to its delegates, George Plater, William Paca, William Car- 
michael, John Henry, James Forbes, and Daniel, of St. Thomas, 
Jenifer. In this document it was pointed out that Virginia had 
it within her power by selling a small portion of these lands to 
greatly replenish her own treasury, reduce her taxes and thus, 
with lands comparatively cheap and taxes comparatively low, 
the neighboring State of Maryland would be deprived by emi- 
gration of its most useful citizens and its importance in the con- 
federated States would sink to a comparatively low level. An 
effort was also made in this document to show that Virginia had 
no title to these lands, and instructions were therein given to her 



14 

delegates that she, herself, would not ratify these Articles until 
she received some distinct assurance that the territory would be- 
come common property of the United States and "subject to be 
parcelled out by Congress into free, convenient and independent 
governments." Delaware followed this initiative, and on Feb- 
ruary 23, 1779, presented to Congress a series of resolutions 
passed by the Legislature of that State, putting forward the 
proposition that these lands should be held by the United States 
on terms alike beneficial to all the States. 

It will thus be seen that the protest of Maryland as finally 
presented to Congress on May 21, 1779, involved two proposi- 
tions, which will now be the subject of inquiry, to-wit, that the 
Continental Congress had the right to assume sovereignty over 
this territory, and, second, that the entire Northwest territory 
acquired from Great Britain by the treaty of 1783 was secured 
by the common blood and treasure of the whole people, and 
therefore should be held by the general government for their 
benefit. It is not surprising that all the other non-claimants 
States, to-wit. New Jersey, Delaware, Pennsylvania, Rhode Is- 
land and New Hampshire, found themselves in full accord with 
the Maryland idea. Virginia, always foremost in asserting both 
her own rights and those of the nation, sharply defined her own 
position, and made answer through her General Assembly on 
December 14, 1779, at which time she addressed to the delegates 
of the United States in Congress assembled a remonstrance 
against the merits of the issues thus raised by Maryland. In 
this remonstrance, after expressing her determination, on all oc- 
casions, "to manifest her attachment to the common interests 
of America, and her earnest wish to remove every cause of jeal- 
ousy and promote that mutual confidence and harmony between 
the different States so essential to their true interest and safety," 
she set forth her position in language too cogent and perspicuous 
to admit of abridgment: 

"Should Congress assume a jurisdiction, and arrogate to 
themselves a right of adjudication, not only unwarranted 
by law, but expressly contrary to the fundamental piinci- 
ples of the Confederation; superseding or controlling the 



15 

internal policy, civil regulations, and municipal laws of this 
or any other State, it would be a violation of public faith, 
introduce a most dangerous precedent, which might hereafter 
be urged to deprive of .territory or subvert the sovereignty 
and government of any one or more of the United States, 
and establish in Congress a power which in process of time 
must degenerate into an intolerable despotism." . . . 

. . . "The United States hold no territory but in the 
light of some individual State in the Union; the territory of 
each State from time immemorial hath been fixed and de- 
termined by their respective charters, there being no other 
rule or criterion to judge by; should these in any instance 
(when there is no disputed territory between paiticular 
States) be abridged without the consent of the States af- 
fected by it, general confusion must ensue; each State would 
be subjected in its turn to the encroachments of the others; 
and a field opened for future wars and bloodshed; nor can 
any arguments be fairly urged to prove that any particu- 
lar tract of country, within the limits claimed by Congress 
on behalf of the United States, is not part of the chartered 
territory of some one of them, but must militate with equal 
force against the right of the United States in general; and 
tend to prove such tract af country (if northwest of the Ohio 
River) part of the British Province of Canada. When Vir- 
ginia acceded to the Articles of Confederation her rights of 
sovereignty and jurisdiction within hei own territory were 
reserved and secured to her, and cannot now be infringed 
or altered without her consent." 

'I'lie position thus set forth on behalf of the old Commonwealth 
was the one finally acquiesced in by the Continental Congress, 
for it was manifest that the adoption of the Maryland idea, to- 
wit, an assertion of national sovereignty over the lands in ques- 
tion, would have been to overthrow the Confederation and to 
wreck the cause of independence. 

In connection with the above Remonstrance of Virginia it is 
important to recall that the Continental Congress neither in its 
relations with Great Britain nor with any of the States, ever 



16 

adopted the Maryland idea by making the national claim to this 
territory, and never took the position that these lands had been 
wrested from the common enemy by the common blood and 
treasure of the colonies. On the contrar}^ in the very instruc- 
tions given by the Continental Congress more than a year be- 
fore the date of Virginia's cession to Mr. Adams, who was one 
of the Commissioners to negotiate the treaty of 1783, the po- 
sition of the colonies was stated in the very words set forth in 
the Virginia Remonstrance and already quoted: "The United 
States hold no territory but in the right of some .one individual 
State in the Union; the territOi-y of each State from time im- 
memorial hath been fixed and determined by their respective 
charters, there being no other rule or criterion by which to judge." 
There was no means of enforcing a claim of jurisdiction over 
these lands by Congress apart from the fact that such an attempt 
was contrary to the express terms of the Articles of Confedera- 
tion. It is inconceivable that a combination of the non-claim- 
ant States could have been made strong enough to enforce such 
a claim against the claimant States of Massachusetts, New York, 
Connecticut, Virginia, North and South Carolina and Georgia. 
So that Congress on the one hand was powerless to induce Mary- 
land to subscribe to the Articles of Confederation, and, on the 
other, the Articles of Confederation left to the States the abso- 
lute control and ownership of their western lands, the power of 
Congress being expressly limited in Article 9 as to the settlement 
of boundary disputes between States. In the meanwhile Vir- 
ginia, finding herself by the Articles of Confederation in the ex- 
clusive control and ownership and desirous of defraying the ex- 
penses of the Clarke expedition, opened a land office, granted 
bounties, and otherwise proceeded to dispose of these lands. 
In recognition of the general discontent the Continental Con- 
gress, on October 30, 1779, passed by a vote of eight States to 
three, a resolution, subsequently transmitted to the different 
States, recommending to Virginia and other States similarly cir- 
cumstanced the propriety of forbearing the further issuance of 
warrants for unappropriated lands during the continuance of the 
War of the Revolution. The first State to respond to this recom- 
mendation was New York, whose delegates on March 30, 1780, 



17 

presented to the Continental Congress an act of its Legislature 
offering to cede to the United States all territory in the West 
claimed by New York. This act was not fully carried into ef- 
fect until March 1, 1781. While the prompt action of New York 
had a good moral effect upon the other States invited to surren- 
der their territory, yet no impartial consideration can lose sight 
of the fact that the title of New York to any of these western 
lands was exceedingly questionable, consisting of a mere claim 
based wholly upon title derived by treaty with the Algonquin 
tribes and the Six Nations, a title which the Supreme Court of 
the United States, in the case of Johnson v. Mcintosh, supra, 
declared did not extend beyond the Indian right of occupancy, 
and was held to be subservient to the chartCi" rights of Virginia. 
A reading of the documents covering the history of this period 
has convinced the writer that the appeal, which proved irresistible 
to the Commonwealth of Virginia, was contained in the language 
of the report agreed to by the Continental Congress after a full 
consideration of the entire subject, including the refusal of Mary- 
land to subscribe to the Articles of Confederation and the action 
of New York therefore ceding her territory. Some of the lan- 
guage of this report in lofty patriotism dignified appeal to sover- 
eign States to make sacrifice for the Commonwealth, and in 
clear conception of the overshadowing importance of the na- 
tional control of this vast domain has been rarely equalled by 
any public paper bearing upon the creation and establishment 
of any government. In part this action of Congress, taken on 
September 6, 1780, Is as follows: 

"That it appears more advisable to press upon these 
States, which can remove the embarrassments respecting 
the western country, a liberal surrender of a portion of their 
territorial claims, since they cannot be preserved entire with- 
out endangering the stability of the general Confederacy; 
to remind them how indispensably necessary it is to estab- 
lish the Federal Union on a fixed and permanent basis and 
on principles acceptable to all its respective members; how 
essential to public credit and confidence, to the support of 
our army, to the vigor of our councils, and success of our 



measures; to our tranquillity at home, our reputation abroad, 
to our very existence as a free, sovereign and independent 
people; that they are fully persuaded the wisdom of the re- 
spective legislatures will lead them to a full and impartial 
consideration of a subject so interesting to the United States 
and so necessary to the happy establishment of the Federal 
Union." 

A resolution embodied in the foregoing report directing that 
the same be transmitted to the legislatures of the several States 
recommended: "To those States who have claims to the western 
country to pass such laws, and give their delegates in Congress 
such powers as may effectually remove the only obstacle to a final 
ratification of the Articles of Confederation." 

On October 10, 1780, Congress made more definite its former 
action by resolution to the following effect: 

"Resolved, That the unappropriated lands that may be 
ceded or relinquished to the United States, by any particular 
State, pursuant to the recommendation of Congress on the 
6th day of September last, shall be disposed of for the com- 
mon benefit of the United States, and be settled and formed 
into distinct Republican States, which shall become mem- 
bers of the Federal Union, and have the same rights of sove- 
reignty, freedom and independence as the other States." 

A proud but generous Commonwealth, always ready to make 
sacrifices, "to establish the Federal Union on a fixed and per- 
manent basis," could not lend a deaf ear to such an appeal, and 
on the following Januarj^ 2, 1781, presumably taking the first 
opporttinity to respond, submitted a proposition for the cession 
of the western lands. In addition to the reservations, six in all, 
which were actually set forth In the deed of cession executed three 
years later, and which will be hereafter more specifically referred 
to, Virginia by the foregoing resolution made one condition of 
the proposed grant, which upon principle was inadmissible, and 
from which she, herself, afterward receded. This condition was 
set forth as follows : 



19 

"That all the remaining territory of Virginia included be- 
tween the Atlantic Ocean and the southeast side of the River 
Ohio, and Maryland, Pennsylvania and North Carolina 
boundaries, shall be guaranteed to the Commonwealth 
of Virginia by the said United States, and that all purchases 
and deeds from the Indians of any lands within the cession 
should be declared absolutely void." 

Clearly these two conditions, if agreed to, would involve a de- 
claration by Congress as to the validity of Virginia's title to the 
Northwest, and a ruling out of the claims of New York and per- 
haps of Connecticut and Massachusetts, and thus be a radical 
departure from the policy of Congress in uniformly declining to 
pass upon the relative claims of sovereign States to lands, a ces- 
sion of which this same Congress was inviting but not demanding 
for the general good. Nor was Virginia supported in insisting 
upon this guarantee by her public men. Madison in a letter to 
John Randolph of August 13, 1782, said: 

"Every review I take of the western territory produces fresh 
conviction that it is the true policy of Virginia, as well as of the 
United States, to bring the dispute to a friendly compromise," 
and further expressed the hope that Virginia's demand for a 
guarantee be relaxed. This guarantee was later characterized 
by Congress in a committee report adopted on September 18, 
1782, to be either unreasonable or unnecessary, Inasmuch as if 
the land above mentioned is really the property of the State of 
Virginia, it is sufficiently secured by the Confederation and if 
it is not the property of that State, there is no reason or consid- 
eration for such guarantee. In March, 1781, two important 
transactions were consummated. The Maryland delegates, be- 
ing therefore empowered by her Legislature, ratified the Articles 
of Confederation, relying on the justice of the States upon the 
question of cession, and the New York delegates executed the 
deed of cession to the western lands claimed by that State. That 
Maryland was justified by this reliance is disclosed by the sub- 
sequent cession of Virginia and the other claimant States. This 
long controversy was ended by Virginia's deed of cession on 



20 

March 1, 1784, eliminating the above guarantee, the deed being 
executed and delivered by her delegates in the Continental Con- 
gress, to-wit, Thomas Jefferson, Samuel Hardy, Arthur Lee and 
James Monroe. This deed was written wholly in the handwrit- 
ing of Thomas Jefferson. 

To the bold initiative of Maryland too much credit cannot 
be given, for in thus centering public attention upon the much 
vexed land question other causes were set in motion which ac- 
complished the result aimed at by Marj-land, but by another 
and more orderly route. While Maryland was lodging her pro- 
tests in Congress, Virginia with an army of her own, entirely in- 
dependent of her full quota of soldiers to the War of the Revo- 
lution, was actually engaged in the successful conquest of the 
very territory which was the subject of controversy, and one 
striking result of the George Rogers Clarke expedition was to 
protect the Maryland frontier from hostile attack. 

The State of Massachusetts made cession of her western lands 
on April 19, 1783, the State of Connecticut on September 3, 
1786, but did not make jurisdictional cession of the Western 
Reserve until May 30, 1800. Subsequently South Carolina ceded 
her western lands on August 9, 1787, North Carolina on February 
25, 1790, and Georgia on April 24, 1802. 

It will thus te seen that Virginia was the first State to cede 
Northwest lands, the title to which was undisputed, thus mark- 
ing an important advance towards establishing a government, 
bound together otherwise than by "a rope of sand," and thus the 
way was paved for the passage of the famous ordinance of 1787, 
whereby this territory was organized into a government forever 
dedicated to freedom. 

III. 

Were Any Rights Reserved to Virginia Under and by 
Virtue of the Deed of Cession of March 1, 1784? 

The crux of the whole question is involved in a true answer to 
this inquiry, because, if the title conveyed by Virginia was in fee 
simple and indefeasible, as historians and statesmen have com- 



21 

monly supposed, and divorced in all respects from any condi- 
tions or reservations, either expressed in the deed or implied in a 
fair construction thereof, then the interrogatory which forms the 
subject of this paper, must be resolved in the negative, and the 
question becomes purely an academic one, shorn ot all vitality, 
and this State must also in such an event rest content in the 
mere retrospective contemplation of her generous relinquish- 
ment of territory, without which it is fair to assume the launch- 
ing of this nation would have been less auspicious, and in the 
further contemplation that the territory thus ceded, by reason 
of its increasing population, expanding resources, and the gov- 
ernments there established, has exerted such a mighty influence 
in forming a Union of independent, sovereign and indestructible 
Commonwealths; whereas, an affirmative answer to this inter- 
rogatory puts flesh on the skeleton, breath into its nostrils, and 
clothes the whole controversy^ with present and human interest, 
paving the way for the consideration of other questions, w^hich 
must still be resolved before this claim becomes justiciable and 
therefore of such a character as may be submitted for adjudica- 
tion to some tribunal clothed with power to hear and to deter- 
mine all the issues involved. 

At this point it is pertinent to call attention to certain distinct 
conditions in the deed of cession recognized by all as binding upon 
the United States. These may be broadly stated as follows: 

1. That the territory thus ceded shall be laid out and formed 
into States distinctly republican and having all the rights of 
sovereignty enjoyed by other States. 

2. That the reasonable expenses incurred by Virginia in con- 
quering this territory from the British, in maintaining garrisons 
therein or otherwise in acquiring any portions thereof shall be 
fully reimbursed by the United States. 

3. That the French and Canadian inhabitants and other set- 
tlers, professing themselves to be citizens of Virginia, shall have 
their titles and possession confirmed in them and be protected 
in the enjoyment of the same. 

4. That there shall be reserved land not exceeding 150,000 
acres for General George Rogers Clarke, his soldiers and officers. 



•22 

5. That there shall be further reservation of land bounties for 
officers and soldiers on Continental and State establishments. 

Congress uniformly recognized the inviolability of these con- 
ditions, and within two months after the cession, to-wit, April 
29, 1784, by resolution called the attention of the States still 
holding western lands to the fact of former resolution of Congress 
asking for cessions; and "in presenting another request for fur- 
ther cessions" states (speaking of persons who had furnished 
supplies to carry on the war): "These several creditors have a 
right to expect that funds shall be provided on which they may 
rely for their indemnification; that Congress still considers va- 
cant territory as an important resource, and that, therefore, the 
said States be earnestly pressed, by immediate and liberal ces- 
sions, to forward these necessary ends, and to promote the har- 
mony of the Union." The land laws of the United States further 
show that all these conditions have been strictly complied with. 
If further illustration were needed that the United States con- 
sidered itself irrevocably bound by the terms of the cession, it 
is found in the resolution of Congress of July 7, 1786, asking of 
Virginia certain alterations in the deed of cession in the follow- 
ing language: 

" 'Resolved, That it be, and it hereby is, recommended 
to the Legislature of Virginia to take into consideration their 
act of cession, and revise the same so far as to empower the 
United States in Congress assembled to make such a division 
of the territory of the United States northerly and westerly 
of the River Ohio, into distinct Republican States, not more 
than five or less than three, as the situation of that country 
and future circumstances may require; which States shall 
hereafter become members of the Federal Union, and have 
the same rights of sovereignty, freedom and independence 
as the original States, in conformity with the resolution of 
Congress of the 10th of October, 1780.' " 

The ordinance of July 13, 1787, providing for the government 
of this territory, also embraced the proposition covered by the 
above resolution and Virginia accepted this modification by leg- 



23 

islative act of December 31, 1788. One condition, however, of 
the deed of cession has never been fulfilled by Congress. This 
condition forms the basis of Virginia's claim to compensation, 
and is in the following language: 

"That all the lands within the territory so ceded to the United 
States, and not reserved for, or appropriated to, any of the be- 
fore-mentioned purposes, or disposed of in bounties to the offi- 
cers and soldiers of the American army, shall be considered as 
a common fund for the use and benefit of such of the United 
States as have become, or shall become, members of the confed- 
eration or federal alliance of the said States, Virginia inclu- 
sive, according to their usual respective proportions in the gen- 
eral charge and expenditure, and shall be faithfully and bona 
fide disposed of for that purpose, and for no other use or pur- 
pose whatsoever.'' 

In the background of any discussion of a breach by the nation 
of the conditions just set forth lies the relation of the govern- 
ment on the one hand and the States carved out of this terri- 
tory on the other, with respect to what was known as the Public 
Domain situated within the borders of these States. Congress 
in its various acts providing for the creation of these States re- 
served to itself not only the control, but the absolute ownership 
of this Public Domain, and the States mentioned had no more 
control over it for purposes of disposition or otherwise than if it 
were located on the Atlantic seaboard. This consideration is of 
vital importance, because the nation by its acceptance of Vir- 
ginia's deed of cession became the sole and exclusive owner of 
many millions of acres of unoccupied and unappropriated lands 
within this territory, lands that have not bfeen appropriated to 
any one of the five uses expressly set forth and authorized in the 
Virginia deed of cession. If follows, therefore, that the nation 
became also the trustee of these unappropriated lands, and its 
duties as such trustee compelled it in law and in equity to ac- 
count to the original thirteen States in respect of any use or dis- 
position made thereof contrary to the sixth condition, also ex- 
pressly set forth in said deed of cession and in equal degree bind- 
ing upon the nation. 



24 

This condition along with the others was accepted by the 
nation, and unless annulled by the concurrence of the high con- 
tracting parties or rendered void by the adoption of the Constitu- 
tion of the United States, adopted after the cession was made, 
furnishes a valid basis of claim on the part of Virginia. 

There has been no legislation by the State or by Congress 
altering in any respect this condition and attention is called to 
the fact that the Constitution of the United States, so far from 
rendering void this condition or in any way affecting its integrity, 
has reaffirmed it by the following provisions: 

Article IV, section 3, "Congress shall have power to dispose 
of and make all needful rules and regulations respecting the 
territory or other property belonging to the United States; and 
nothing in this Constitution shall be so construed as to prejudice 
any claims of the United States or of any particular State." 

And Article VI : 

"All debts contracted, and engagements entered into, before 
the adoption of the Constitution, shall be as valid against the 
United States under the Constitution as under the confedera- 
tion." 

IV. 

The Basis and Extent of Compensation to Virginia. 

It is to be constantly observed that any of this territory or the 
proceeds thereof disposed of by the United States contrary to 
the express condition in the deed of cession "shall be considered 
as a common fund for the use and benefit of such of the United 
States as have become or shall become members of the Confederation, 
or Federal alliance of the said States, Virginia inclusive, according 
to their usual respective proportions in the general charge and ex- 
penditures, and shall be faithfully and bona fide disposed of for that 
purpose and for no other use or purpose whatsoever.'' 

The first inquiry forcing itself upon the mind on a careful 
scrutiny of this language is, why did Virginia in making this 
reservation include all the thirteen States as beneficiaries in this 
trust? Having title to this vast region, with unlimited power of 



25 

alienation, why did she not compel the nation to become trustee 
for her sole and exclusive benefit, instead of acting in such ca- 
pacity for the benefit of the entire thirteen States? This ques- 
tion may only be intelligently resolved by a consideration of the 
Articles of Confederation and the legal relation of the States 
thereto. At the time Virginia by legislative act made her offer 
of cession upon terms which she knew would be acceptable to 
the National Government, Maryland had not ratified the Arti- 
cles of Confederation, and, since these Articles constituted a per- 
petual union among thirteen States, this ratification by ticelve 
States alone did not give them force and effect over even the 
twelve. Therefore, the language in the Virginia offer of cession, 
afterwards incorporated in the deed of cession, "shall be consid- 
ered a common fund for the use and benefit, of such of the United 
States, as have become or shall become members of the Con- 
federation or Federal alliance," was evidently designed to secure 
the immediate ratification of Maryland. Another reason why 
the thirteen States were included in the benefits of -the reservation 
grew out of the fact the Continental Congress was experiencing 
great difficulty in getting the various States to supply their pro- 
portion of the amounts assessed against them for the common de- 
fense, pursuant to resolution of Congress of October 14, 1777. 
Some of the States were not responding promptly in meeting 
their share of the burden of the Revolutionary War, and Virginia 
rightl}^ concluded that, by making the less important States 
joint beneficiaries with herself, "according to their usual and re- 
spective proportions in the g neral charge and expenditures," all 
the States would more promptly meet the expenses of the war, 
and that thus the Continental Congres.- would be provided with 
funds necessary to bring the war to a successful close. Her 
statesmen doubtless reasoned that the States securing by the 
sword the independence of the nation, should also be the bene- 
ficiaries of her bounty. This view is strengthened by the re- 
flection that there was no power delegated to Congress by the 
Articles of Confederation respecting the ownership or control of 
public domain. The government created by the Articles was a 
mere creature of the States with limited powers of agency. The 
States alone in their individual capacity had the right to own and 



26 

govern territory, and this right as above pointed out was guar- 
anteed to them by the Articles of Confederation. 

From this premise the conclusion of necessity follows that the 
States in their sovereign capacity having the power to own ter- 
ritory, might also become in their individual capacities the bene- 
ficiaries of the trust contemplated by Virginia's deed of cession. 

The Constitution of the United States not yet having been 
adopted, and the idea of the States being members of a Federal 
alliance that was little more than a partnership operating upon 
the mind of Congress, the latter (History of Public Domain, p. 
196) on October 10, 1780, ordered that the land ceded to the 
United States should be disposed of for the common benefit of 
the United States, and granted or settled at such time and under 
such regulations as shall hereafter be agreed on by the United 
States in Congress assembled, or by any nine or more of them. 

On May 20, 1785, the Continental Congress passed an ordi- 
nance (repealed in part of July 9th, 1788) providing for disposi- 
tion of lands in this territory. 

Under this ordinance the Board of Treasury (the Treasury De- 
partment prior to and under the Confederation: See ordinances 
of Congress of February 17, 1776, of July 30, 1779, and of May 
28, 1784), consisting of three commissioners, were to receive the 
plats of surveys, from the geographer (now survey general) in 
charge of surveys. The Secretary of War was then to draw by 
lot certain townships for land bounties for the use of the Conti- 
nental Army and the Board of Treasury was to draw the re- 
mainder by lot in the name of the thirteen States, respectively, 
who were to advertise and sell them at public sale for not less 
than $100 per acre." 

Clearly, as pointed out by Dr. Robert B. Fulton in his pamph- 
let on the "Virginia Land Cession of 1784," the provision for 
drawing certain tracts in the name of the thirteen States was a 
move toward carrying out the last specific condition in the Vir- 
ginia deed cession. 

The following extract is taken from the History of the Public 
Domain, pp. 200-205. 



27 

"On March 3, 1795, Congress, by law provided, that 'the 
net proceeds of the sales of lands belonging, or which shall 
hereafter belong, to the United States in the western terri- 
tory thereof,' should constitute a portion of the sinking fund 
of the United States for the redemption of the public debt. 

"On May 18, 1796, Congress passed the act for the sale 
of the land of the United States in the territory northwest 
of the River Ohio, providing for the sale of the surveyed 
lands in sections of 640 acres, at not less than $2.00 per acre, 
the proceeds to be paid to the Treasury of the United States. 

"The general policy of land legislation by Congress was, 
for the first thirty years, to meet exigencies by temporary 
enactments fiom time to time. This policy was continued 
down to the period of the passage of the pre-emption act of 
1841." 

Dr. Fulton aptly remarks: 

"Under this policy Congress fell into the habit of donating 
lands freely and liberally in the territory ceded by Virginia, ap- 
parently without considering whether or not the conditions of 
this cession were being fully fulfilled by such donations and 
grants for local benefit. As the result of this indefinite policy the 
lands in the territory ceded by Virginia have been practically all 
disposed of by the United States without any adjustment or 
settlement of Virginia's reserved interest therein." 

The land granted by Congress to Ohio, Indiana, Illinois, Mich 
igan, Wisconsin or to persons in those States for local uses al 
in direct violation of the sixth condition in Virginia's deed of 
cession, may be stated under the following heads: 

1. For public schools, one square mile in each township to 
the legislatures of these five States. 

2. For seminaries in each of these States (and more in Ohio 
and Wisconsin) seventy-two square miles. 

3. For public roads and other internal improvement 3 per 
cent, of the receipts for sales of public lands by the United States 
to Indiana, Illinois, and Ohio, and 5 per cent, of such sales to 
Michigan and Wisconsin. 



28 

4. Internal improvements, 500,000 acres to each State. 

5. For canal construction purposes, 4,424,073 acres. 

6. For military roads, 523,000 acres. 

7. Land grants to railroads to these States and the corporations 
therein, 9,504,861 acres. 

8. Salt springs and saline lands, 214,371 acres. 

9. Under the swamp act Congress gave to these States 11,- 
406,841 acres. 

10. Special grants for local improvements and for other sun- 
dry purposes, 100,000 acres. 

Similar grants in Minnesota amounted to 5,529,000 acres. 
This makes the total of 38,864,189 acres thus disposed of by the 
National Government contrary to the express terms of Virginia's 
deed of cession, and in a manner that gave no "use" or "benefit" 
to Virginia and the other thirteen States, as set forth therein, or 
one-fifth of the lands ceded. 

To the above 38,864,189 acres must be added 119,479,204 acres 
disposed of by the United States as a part of the public domain. 
This will more fully appear from the following admirable table 
taken from Dr. Fulton's paper: 

Acres 

"The total area surveyed by the United States 
in the States formed in the Virginia cession, as above 
shown, amounted to 170,208,613 

The total granted for local uses was 38,864,189 

Total granted in bounties to soldiers 11,865,220 



50,729,409 

170,208,613 
50,729,409 



Balance sold or to be sold 119,479,204 

It is not possible without a careful scrutiny of the original 
records bearing upon the sale of the public lands to estimate 
with accuracy the amount received by the Government from 



29 

these sales. It is beyond the scope of this paper to make in- 
quiry as to the value to be placed upon these lands in considering 
Virginia's right to compensation. When it is considered, how- 
ever, that the total area disposed of by the National Government, 
contrary to the express reservations in the Virginia deed of 
cession, amounts to 158,343,391 acres, it becomes manifest that, 
whatever system of accounting is adopted, the total claim of the 
original thirteen states, to which Virginia's share, based upon her 
proportion "of the general charge and expenditure," would be 
one-seventh, would approximate the sum of $200,000,000. West 
Virginia and Kentucky, being parts of Virginia at the time of the 
deed of cession, would be entitled to an equitable accounting 
from Virginia for anything the latter may receive by way of 
compensation. 

V. 

Has Virginia Lost Her Claim to Compensation by Reason 

OF Laches? 

The defense of laches is peculiar to courts of equity and may 
be said to be founded on lapse of time and staleness of claims 
where no statute of limitations directly governs the case and is 
addressed to the sound discretion of the court. There are sev- 
eral well-known exceptions to the operation of this doctrine, 
only two of which need be adverted for the purposes of this dis- 
cussion. 

(a) Laches Not Imputable to a Sovereign. 

The only modification of this rule is where a sovereign govern- 
ment descends from its position of sovereignty and enters the 
domain of commerce — a modification that has no reference to 
the case under consideration. 

The Supreme Court of the United States has uniformly ad- 
hered to this rule, and in the case of Armstrong v. Morrill, 14 
W^all. 120, thus expressed it: No laches is to be imputed to the 
government and against it no time runs so as to bar the public 



30 

rights, which is no more and no less than another form of words 
for expressing the ancient rule of the common law that time does 
not run against the State." 

This rule was given a more extended definition in the case of 
Metropolitan Railroad Co. v. District of Columbia, 132 U. S. 1, 
decided 1889, the following extract being taken from the opinion 
of Mr. Justice Bradley: 

"No restrictive laws apply to the sovereign unless so ex- 
pressed. And especially no laws affecting a right on the 
ground of neglect or laches, because neglect and laches can- 
not be imputed to him. And it matters not whether the 
sovereign be an individual monarch, or a republic, or a State. 
The principle applies to all sovereigns. The reason usually 
assigned for this prerogative is that the sovereign is not an- 
swerable for the delinquencies of his agents. But what- 
ever the true reason may be, such is the general law — such 
the universal law, except where it is expressly waived. The 
privilege, however, is a prerogative one and cannot be chal- 
lenged by any person inferior to the sovereign, whether that 
person be natural or corporate." 

{h) Defense of Laches Not Open Where There is no Judicial Remedy. 

While under the Tucker and Bowman acts the Court of Claims 
Is the proper forum to which certain loyal citizens may submit 
for adjudication claims previously authorized to be submitted 
by Congress against the government for damages to or loss of 
property growing out of the Civil War and otherwise, yet no 
tribunal has been established and no law passed whereby the 
United States has agreed to respond to the suit of a sovereign 
State. To remedy this situation a bill was introduced in the 
Senate on April 10, 1912, by Senator Chilton, of West Vir- 
ginia, conferring jurisdiction upon the Court of Claims to 
hear and determine the joint and several claims of Virginia 
and the other thirteen States, also inclusive of West Virginia 
and Kentucky, against the United States growing out of Vir- 
ginia's deed of cession of March 1, 1784, and providing "that an 



31 

appeal may be taken from the findings of said court, both as to 
the law and facts, to the Supreme Court of the United States as 
in other cases." 

The Court of Claims in Balmer v. U. S., 26 C. CI., 82, 88, said 
there could be no laches where there was no enforcible legal 
right. 

It will be sufficient in closing this aspect of the matter to cite 
a single decision of the Supreme Court of the United States, 
when that court in the case of Amy v. Watertown, 130 U. S., 320, 
325, speaking tJirough Mr. Justice Bradley, said: "There is one 
class of cases which is excluded from the operation of the statute 
(referring to the Statute of Limitations) by act of law itself, 
. . . This class embraces those cases in which no action can be 
brought at all (italics mine), either for want of parties capable of 
suing, or because the law prohibits the bringing of the action. 
In such cases the general law operates as a qualification, a tacit 
condition of the particular statute." 

It may also be suggested that this conveyance with respect 
to the condition or reservation was made upon an express and 
continuing trust, which is as follows: "And shall be faithfully 
and bona fide disposed of for that purpose and no other." The 
government by taking possession of these lands became a trustee, 
and the possession of the trustee, under the circumstances, is 
presumed to be the possession of the cestui que trust — in this 
case the original thirteen States. Besides, it was not until a 
recent date that the last of these lands were disposed of by Con- 
gress. 

VI. 

The Authorship and Importance of the Ordinance of 
July 13th, 1787. 

It has been remarked that history may yet adjudge the \'ear 
1787 as the greatest in our annals. In that year the Continental 
Congress, sitting in New York, and on the eve of adjournment 
forever gave us the ordinance of the Northwest, and the Consti- 
tutional Convention, sitting in Philadelphia, gave us the Con- 



?2 

stitution of the United States. John Fiske, in his "Critical Pe- 
riod of American History, declares that we can only understand 
how the nation was formed by studying the creation of the na- 
tional domain between the Mississippi and the Alleghanies. 

Daniel Webster in his celebrated reply to Hayne, said: "I 
doubt whether one single law of any law-giver, ancient or mod- 
ern, has produced effects of more distinct, marked and lasting 
character than the ordinance of 1787." 

Senator Hoar, in his oration at the Centennial Founding of 
the Northwest at Marietta, Ohio, in 1888, spoke of the ordinance, 
along with the Declaration of Independence and the Constitu- 
tion, as "one of the three title deeds of American Constitutional 
liberty." 

Judge Cooley, after a life spent in the territory carved out of 
this cession, said: "No charter of government in the history of 
any people has so completely withstood the tests of time and 
experience; it was not only a temporary adaptation to a particu- 
lar emergenc}' , but its principles were for all time and worthy of 
acceptance under all circumstances. It has been a fitting model 
for all subsequent government in America." 

Too many elements entered into the history of this remark- 
able document to warrant any attempt to fix its authorship upon 
any one individual in the same manner that the honor of drafting 
the Virginia Bill of Rights may be justly awarded to George 
Mason. 

There are several aspirants to the authorship of its most dis- 
tinctive feature, to-wit, the slavery proviso. Webster in his 
reply to Hayne in 1830 claimed the honor for Nathan Dane, of 
Massachusetts, while Mr. Hayne and Thomas H. Benton claimed 
it for Jefferson, and President King, of Columbia University, 
claimed it for his father, Rufus King. The fact is that the slav- 
ery proviso appeared in the very first draft of an ordinance for the 
government of this territory, a draft still extant, and in the hand- 
writing of Jefferson, submitted to the Continental Congress by 
Jefferson in his form of a report on the very day of the Virginia 
cession. While the proviso was at that time stricken out, yet 
it later appeared in the ordinance of 1787, which became the per- 
manent government of the territory. It is not surprising that 



33 

the draft offered by Jefferson should make slavery forever im- 
possible In this region. His whole life had been arraigned against 
the institution, as to which he said in his notes on Virginia, "I 
tremble for my country when I reflect that God is just, and that 
His justice cannot sleep forever." In the full vigor of young 
manhood as a member of the Virginia House of Burgesses in 1767, 
he had caused a resolution to be introduced looking to the eman- 
cipation of slaves. New lustre would have been added to the De- 
claration of Independence, which Lord Brougham said should be 
hung in the cabinets of kings, if his attack upon this institution 
had not been stricken out when it appeared in its final form. We 
are prepared, therefore, for the wide scope of the pioneer sugges- 
tion contained in his original draft of ordinance, when, at the age 
of 41, in the full tide of manhood's prime, and with prophetic 
instinct, he asked Congress not only to exclude slavery from the 
territory northwest of the Ohio, but also south and east of that 
river. It is reasonable to suppose that if this feature had be- 
come a part of the organic law of the nation thus early in its his- 
tory, that slavery would have been excluded from all subsequent 
territorial acquisitions of the United States. Indeed, this very 
proposition of Jefferson to restrict the territorial area of slavery 
and thus let it die a natural death, constituted the main plank 
in the platform of the Republican party upon its organization. 
It was upon his advocacy of this plank that Mr. Lincoln became 
President of the United States. It may be well within the realm 
of conjecture, but surely no violence is done to the imagination 
to reflect that if this principle had been adopted upon the thresh- 
old of our national existence there would have been no abolition 
party, no Missouri Compromise, no Free Soil Platform, no ques- 
tion of squatter sovereignty, no Dred Scott decision and no Civil 
War. 

In concluding observations upon this interesting document, we 
may without danger of overstepping the truth adopt the lan- 
guage of Schouler, "Here, as in the fundamental verities of the 
Declaration of Independence, Jefferson's name blazons the 
record." 



34 

It has seemed not inappropriate to direct attention in this 
brief manner to the unique place this ordinance occupies in our 
history, for without the cession of Virginia there would have 
been nothing upon which the ordinance eould operate, and hence 
no occasion for its enactment, and W'ithout the ordinance an im- 
perishable chapter in our history would never have been written. 
Moreover, no apology need be made for the suggestion that the 
issues involved in the contest from '61 to '65, now happily be- 
yond the realm of controversy, would have had a far different 
ending if the North in that Titanic struggle had been deprived 
of the resources of the great States of Ohio, Indiana, Illinois, 
Michigan, Wisconsin and Minnesota east of the Mississippi — 
territory ceded to the nation in an hour of peril without coeicion 
and without compensation by the spirit and patriotism of the 
old Commonwealth. In view of this generous contribution to 
the glory of the Republic, Virginians may well be pardoned if 
they fail to see the justice of the dismemberment of their ter- 
titory involved in the creation without her consent and against 
her protest of the western portion of the State into the sover- 
eign State of West Virginia, an act made possible only by the 
strong arm of the National Government at a time when Virginia 
was engaged with all her resources in defending the rights guar- 
anteed to her by the Constitution of the United States and the 
laws passed in pursuance thereof — an act not even justified as a 
war measure, according to Mr. Blaine in his "Twenty Years in 
Congress." This brilliant statesman, who cannot be charged 
with bias in favor of the South, advocated the payment of a por- 
tion of Virginia's debt by the nation, because of the signal act 
of injustice involved in singling out this State for a punishment 
that was not administered in equal or in any measure upon any 
other member of the confederacy. Mr. Blaine further suggested 
that, although Virginia was a public enemy while the war lasted, 
she was entitled to as magnanimous treatment as was accorded 
Mexico, to whom the nation paid under the terms of the treaty 
of Guadalupe Hidalgo the sum of SI 5, 000, 000 for territory that 
the former was compelled to surrender as a result of the triumph 
of American arms. No claim against the nation has even been 
urged by the State for this crowning act of humiliation. Instead 



35 

she has proceeded in an orderly manner to submit for adjudica- 
tion to the Supreme Court of the United States her claim against 
West Virginia for her just proportion of the debt existing at the 
time of the dismemberment and the findirtgs of that court, while 
not yet concluded, have already established the justice and the 
validity of her right to compel the payment by West Virginia 
of a just proportion of this debt. Be it observed that this liti- 
gation now pending is between two independent States, and we 
are presented with the amazing spectacle of sovereign rights being 
submitted for adjustment to the due and orderly process of the 
law, with the complete assurance that, however large the judg- 
ment finally rendered, it will be satisfied without the necessity 
of putting in motion any of the machinery of that august tribu- 
nal for its enforcement. The reason for such a situation is found 
in the fact that these great States are convinced that the mem- 
bers of this court in all the conclusions reached will meet out 
even and impartial justice to the respective litigants, and that 
no obligation will be imposed by its judgment upon either State 
repugnant to justice or inconsistent with sovereignty. 

All that is contemplated by the resolution of Senator Chilton 
above referred to, which resolution, I am informed, has the full 
approval of the Senators from Virginia, is to so extend the juris- 
diction of the Court of Claims as to confer upon the States in- 
terested the same rights of bringing suits against the govern- 
ment as is now accorded individuals. This tribunal was es- 
tablished in recognituion of the lofty principle that no corpora- 
tion, Indian tribe or individual having claims against the United 
States should be without a tribunal in which those claims could 
be adjudicated. Shall this same privilege be withheld from a 
sovereign State? The resolution does not contemplate or an- 
ticipate what the findings of the court may be, but simply confers 
upon it jurisdiction to hear and determine the rights of the States 
interested growing out of the cession of Virginia of March 1, 
1784, with the right of ultimate appeal to the Supreme Court of 
the United States. True, the claim, if established, may be 
large, but upon a full understanding of the situation is it 
conceivable that the resolution will not meet with the ap- 
proval of the repiesentatives in the National Congress of the 



FEB « 1913 

♦36 

States carved out of this territory? Is it conceivable that the 
States that have come into the Union since, now constituting a 
majority, it is true, themselves the beneficiaries in a larger sense 
of this signal act of generosity and inheritors of a common des- 
tiny, would oppose the submission of the rights of Virginia and 
her sister State, to a tribunal, which, whatever might be said of 
its imperfections, still stands before the world as the most im- 
portant and impressive court of justice? Is it conceivable that 
the nation would refuse to have its own rights in the matter thus 
adjudicated at a time when such a large body of thinking and in- 
fluential citizens are looking forward to the establishment at an 
early day of an international tribunal, with our own Supreme 
Court as a model, to which, in lieu of the arbitrament of the 
sword, may be submitted all questions, including those of so- 
called national honor, arising among the nations of the earth? 



84 





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